General Terms and Conditions of innogy Gas Storage NWE GmbH, Flamingoweg 1, 44139 Dortmund (hereinafter, "igsnwe") for access to the natural gas storages operated by igsnwe Version of 01/12/2016 Part 1 General information 1 Scope of application Part 2 Booking procedure (apart from auctions) 2 Storage request 3 Capacity allocation 4 Lead times Part 3 Storage contract 5 Subject of contract 6 Fees 7 Technical framework conditions 8 Revocation of long term contract capacity 9 Filling level at end of contract term Part 4 Operation 10 Nomination 11 Allocation
Part 5 General provisions 12 Interruptions of service for planned measures and disruptions and imminent danger 13 Invoicing and payment 14 Credit Screening 15 Force majeure 16 Liability 17 Data disclosure and processing 18 Confidentiality 19 Economic changes 20 Modifications of these Terms and Conditions 21 Secondary trading 22 Transfer of natural gas volumes 23 Legal succession 24 Term and termination 25 Severability 26 Applicable law, arbitration procedure and place of jurisdiction 27 Integral parts of these Terms and Conditions - 2 -
Part 1 General information 1 Scope of application (1) These General Terms and Conditions of Business (hereinafter, the "Terms and Conditions") apply to storage contracts of innogy Gas Storage NWE GmbH (hereinafter, "igsnwe") regarding access to and storage of the natural gas in the natural gas storage facilities of igsnwe. Exempt is day-ahead utilization, for which separate terms and conditions apply. (2) Access to the storage facilities is provided based on the storage contract referred to in Part 2 and subject to these Terms and Conditions and the annexes applicable to the relevant storage facility: "Storage Fees", "Technical Framework Conditions", "Operation and Nomination", "Balancing" and Credit Screening. (3) Storage facility is defined in the following contractual rules as a single physical storage facility or the combination of in minimum two storage facilities to a storage pool. (4) The integration of any General Terms and Conditions of business of the storage customer is hereby expressly rejected. Part 2 Booking Procedure (apart from auctions) 2 Storage request (1) Available storage capacities shall be published on the website of igsnwe as "bookable capacities". If a requested storage product of a potential storage customer is not published on the igsnwe website, igsnwe shall check upon corresponding non-binding request whether the requested storage product can be offered. Generally, a storage contract on available storage capacities is concluded in accordance with the procedure presented below. (2) The potential storage customer shall be entitled to make both "binding" and "non-binding" storage requests with igsnwe. In principle, a request must be sent to igsnwe in writing, whereby an e-mail or fax is sufficient. A binding storage request needs the following information to be complete: contact data (company, contact partner, address, phone number, e-mail), name of the storage, required capacity in m³/h respectively in m³ or number of storage bundles as well as start and end of booking. In the case of a "binding" request (= binding offer), igsnwe shall confirm for the potential storage customer the receipt of the request in writing. (3) A non-binding request can be changed to a binding request within negotiations. (4) igsnwe shall review in the case of the "binding" request after confirmation of the receipt by igsnwe (resp. paragraph (2)) whether the request is complete pursuant to the requirements in paragraph (2). If necessary, igsnwe shall enquire about the missing information necessary to further process the request from the potential storage customer. - 3 -
(5) The availability shall then be checked with respect to the requested booking parameters (storage products and capacities, storage facility location and booking period). (6) If the requested booking parameters are not available in whole or in part at the time of the request, igsnwe shall reject the request of the storage customer in text form providing corresponding grounds. If igsnwe only rejects the request from the potential storage customer in part, igsnwe shall to the extent possible submit an alternative offer concerning feasible booking parameters possible on the request date (if applicable, within the framework of the review of the capacity revocation pursuant to 8) and shall in principle continue to process the request. (7) If the requested booking parameters are available as of the date of the request, igsnwe shall accept the "binding" request by sending a storage contract already signed by igsnwe within the period of commitment pursuant to 3 paragraph (3) to the storage customer. A fax or an e-mail also is sufficient; in exceptional cases and with prior consultation between igsnwe and the storage customer the acceptance of the binding request by e-mail is sufficient. The contract signed by the storage customer has to be sent back for documentation purposes within 10 working days. Decisive for the observance of the aforementioned period shall be the receipt of the countersigned copy by igsnwe. (8) If a "non-binding" request is submitted, igsnwe shall check the relevant capacities and contact the potential storage customer while preparing to issue an offer. 3 Capacity allocation (1) In case of a "non-binding" request, the potential storage customer is not entitled to claim the allocation of the requested storage capacities. igsnwe shall inform the potential storage customer within 10 (ten) working days of the feasibility of allocating the requested storage capacities. (2) In case of a "binding" request, the potential storage customer shall be bound for a period of 14 (fourteen) working days from the date of the receipt by igsnwe of the written and complete request to its offer to conclude a storage contract with igsnwe (binding period). (3) In order for storage capacities to be allocated the following prerequisites apply: a. storage capacities must be freely available for the period requested by the potential storage customer as of the allocation date; b. the potential storage customer must have submitted a "binding" offer pursuant to Paragraph (2); c. the credit screening of the storage customer pursuant to 14 must be positive. (4) Storage capacities shall be allocated to several storage customers in the temporal order of the receipt of the "binding" offers from the storage customers. - 4 -
(5) If the offers pursuant to paragraph (2) have been received by igsnwe within one calendar day and the free storage capacities are not sufficient to cover the offers, the storage capacities shall be allocated in accordance with the following criteria: a. "Binding" offers from storage customers for longer booking periods are to be considered with priority of corresponding offers with shorter booking periods. b. If several "binding" offers from storage customers equally meet the above criterion, the "binding" offers from the storage customers with a contract starting as of 1 April of a year shall be considered with priority. c. If several "binding" offers from storage customers meet the two aforementioned criteria, the "binding" offers from storage customers with an earlier contract starting date shall be considered with priority. (6) Deviation from 2 & 3, igsnwe shall reserve the right to award available storage capacities after corresponding notice in a public auction/call to tender offers, particularly if the demand is greater than the available capacities. In such event, igsnwe shall inform about the introduction of the award proceedings and the framework conditions thereof and publish these. 4 Lead times (1) For "binding" offers to conclude a storage contract, the following lead times shall apply subject to 3: A "binding" offer for a storage contract with a term of less than one (1) month may be issued at the earliest twenty (20) working days before the starting date foreseen in the storage contract. A "binding" offer for a storage contract with a term of less than one (1) year but at least one (1) month may be issued at the earliest three (3) months prior to the starting date foreseen in the storage contract. "Binding" offers for storage contracts with a term of one (1) year or more may be issued without any lead time. (2) For the technical processing of the storage contract, the storage contract must be concluded ten (10) working days at the latest before the starting date foreseen in the storage contract. Otherwise, the storage customer may first use the storage capacities ten (10) working days after the conclusion of the contract, irrespective of the foreseen starting date. The necessity of the communications tests shall not be prejudiced hereby. - 5 -
Part 3 Storage contract 5 Subject of contract (1) With the conclusion of a storage contract between igsnwe and the storage customer, igsnwe shall maintain for the storage customer the storage capacities contracted pursuant to the storage contract for the term of the storage contract. (2) The storage customer shall be entitled within the framework of the storage contract to use the storage capacities maintained by igsnwe with due regard to the Annex "Technical Framework Conditions". (3) The storage customer shall be obliged pursuant to the Annex "Operation and Nomination": to provide the natural gas volumes nominated for injection at the storage injection points; to take the natural gas volumes provided by igsnwe at the storage withdrawal points at the same time and with the same thermal volumes. (4) igsnwe shall be obliged with due regard to the Annex "Technical Framework Conditions": to take the natural gas volumes nominated by the storage customer at the storage injection points at the same time and with the same thermal volumes and to inject them and to store them with the same thermal volumes; to withdraw the natural gas volumes nominated by the storage customer for withdrawal and to make them available at the storage withdrawal points, provided the corresponding natural gas volumes have been injected prior to the withdrawal for the storage customer or have been transferred by other storage customers within the same storage facility to the storage customer. (5) When natural gas volumes are provided and taken for injection or withdrawal subject to paragraph (3) and(4), the transfer of risk between the storage customer and igsnwe shall take place at the lines of ownership between the respective storage facility and the adjacent gas grid. The applicable lines of ownership are agreed in the respective storage connection agreement between igsnwe and the network operator. (6) Within the framework of the storage (injection/withdrawal and storage of natural gas), natural gas volumes of the storage customer can become mixed with other natural gas volumes in the natural gas storage facility. The identity of the natural gas need not be preserved. The stored natural gas shall remain the (co-)property of the storage customer. (7) A storage contract may have a term of at least one (1) gas day and a maximum of seven (7) years. (8) All capacity and volume data of igsnwe are specified in m³ (working gas volume) and m³/h (injection and withdrawal rate) and refer to standard cubic meters. - 6 -
6 Fees (1) The storage customer is obliged to pay igsnwe the storage fees determined in the storage contract for the contracted storage products. (2) The storage fees determined in the storage contract for the respective storage products are set out in the Annex "Storage Fees". 7 Technical framework conditions (1) The technical requirements applicable to the respective injection and withdrawal points of a natural gas storage facility and the provisions regarding the failure by the storage customer to observe the necessary technical requirements are defined in the Annex "Technical Framework Conditions". The technical requirements contain inter alia provisions regarding the injection and withdrawal characteristic line, the switching and the requirements for the employment of the working gas volume. (2) If the natural gas volumes delivered by the storage customer at the storage injection point do not meet the technical requirements with respect to the gas quality or pressure ratios pursuant to the Annex "Technical Framework Conditions" (hereinafter, "off-spec gas"), igsnwe shall be entitled to reject the takeover of the off-spec gas in whole or in part. The storage customer must in this case immediately adjust its nomination at this storage injection point accordingly, and reduce the further provision of the off-spec gas at this storage injection point accordingly. The other rights and duties of the contractual partners shall not be prejudiced hereby. (3) If the natural gas volumes delivered by igsnwe at the storage withdrawal point do not meet the technical requirements with respect to the gas quality or pressure ratios pursuant to the Annex "Technical Framework Conditions", the storage customer shall be entitled to reject the takeover of the off-spec gas in whole or in part. The storage customer must in this case immediately adjust its nomination at this storage withdrawal point accordingly. igsnwe must in this case immediately reduce the provision of the off-spec gas at this storage withdrawal point accordingly. The other rights and duties of the contractual partners shall not be prejudiced hereby. (4) The contractual partners shall inform each other without undue delay of variations in the requirements for quality and/or pressure ratios pursuant to the Annex "Technical Framework Conditions" of which they become aware and which are relevant for the execution of the storage contract. (5) If, based on conduct on the part of the storage customer not complying with the contract, not insubstantial impairments in the storage facility systems, the safety of the operations, the rights of third parties or the security of supply can be expected in the reasonable and prudent estimation of igsnwe, igsnwe shall be entitled to reduce or interrupt the storage access to the extent this eliminates the irregular condition. Moreover, igsnwe may demand the establishment of technical measures at the expense of the storage customer to the extent necessary to observe the contractual provisions. If the technical measures are necessary as a - 7 -
result of conduct not complying with the contract on the part of the storage customer and further storage customers for the same natural gas storage facility, igsnwe shall divide the costs for establishing these technical measures in proportion to the amount of respectively maintained working gas volume among the affected storage customers which have to bear these costs. 8 Revocation of long term contract capacity (1) igsnwe shall be entitled to revoke from the storage customer the capacities held available pursuant to the storage contracts with a contract duration of minimum five years in whole or in part and allocate them to a third party. Precondition for the revocation is that no firm capacities are available in the natural gas storage facility for the period that has been bindingly requested by the third party and that the storage customer has not used the capacities that have been bindingly requested by the third party in whole or in part within the last twelve (12) months before the receipt of the third party s request. (2) igsnwe is obliged to inform the storage customer about the imminent revocation of capacity in writing at least two months prior to the start of revocation, specifying the start date, duration and extent of the capacity revocation of capacity. (3) Paragraph (1) does not apply if the storage customer appeals the imminent revocation of capacity in writing within fifteen (15) working days after the receipt of the information of igsnwe pursuant to Paragraph (2) and cogently makes proof of a legitimate interest in using the capacities. A "legitimate interest in using the capacities" shall exist particularly in the event the relevant capacities are necessary for the storage customer to fulfill existing contractual obligations or to make use of existing contractual rights within the relevant period of revocation. (4) After expiry of the appealing period pursuant to paragraph (3) or after receipt of a written refusal of the storage customer s appeal the contract partners shall be released from the mutual contractual obligations with regard to the revoked capacities. 9 Filling level at end of contract term (1) The storage customer shall be obligated to assure that it reaches the agreed filling level as of the cessation of storage contract. Should the storage customer not meet the filling level pursuant to Sentence 1 in due time, igsgs shall charge or compensate the storage customer for the remaining or over-withdrawn working gas volumes pursuant to the Annex "Storage Fees". If natural gas volumes remain, the co-title of the storage customer to the natural gas volumes in the natural gas storage facility at the cessation of the term of contract shall pass from the storage customer to igsnwe. (2) Should the storage contract be terminated without notice pursuant to 24 of these Terms and Conditions, the storage customer shall be granted a reasonable period to fulfill the obligations mentioned in Paragraph (1). - 8 -
(3) If the storage customer is not able due to force majeure or any ground for which igsnwe is responsible to fulfill the obligations mentioned in Paragraph (1), the storage customer shall have the right to compensate the differences within a reasonable period agreed between the storage customer and igsnwe after expiry of the storage contract. Paragraph (1), Sentence 2 shall not apply in this event. (4) To fulfill the rights and duties of the storage customer in Paragraphs (1) to (3), transfers of natural gas volumes shall be admissible between several storage customers pursuant to 22. Part 4 Operation 10 Nomination The storage customer shall be obliged to nominate the natural gas volumes to be assumed by igsnwe for injection and the natural gas volumes to be provided upon withdrawal in accordance with the provisions of the Annex "Operation and Nomination". 11 Allocation Provisions on the allocation of the natural gas volumes taken over hourly by storage customer from igsnwe at the injection or withdrawal points of the storage facility for injection or the natural gas volumes made available hourly by the storage customer for withdrawal are determined in the Annex "Balancing". Part 5 General provisions 12 Interruptions of service for planned measures and disruptions and imminent danger (1) During planned measures pursuant to Sentence 2 or disruptions of the natural gas storage pursuant to Sentence 3, igsnwe shall be entitled to interrupt or restrict the storage facility operation. "Planned measures" means measures to perform maintenance (servicing, inspection and repair) and measures to execute installations, alterations or extensions of equipment in the natural gas storage facility. "Disruptions of the natural gas storage" means unplanned interruptions or other unplanned irregularities in natural gas storage or unplanned interruptions or other unplanned irregularities in the provision or take-over of natural gas for injection or withdrawal. In the aforementioned cases, igsnwe shall be entitled to restrict the agreed storage capacities accordingly and shall be released in this regard from its contractual obligations. (2) igsnwe shall endeavor to restrict planned measures pursuant to Paragraph (1) to the necessary degree while assuring the highest possible availability of the maintained storage capacities. (3) If, through the planned measures or disruptions pursuant to Paragraph (1), the firm injection capacity, the firm withdrawal capacity or the firm working gas volume contracted in the storage - 9 -
contract are restricted or interrupted for a period of at least twelve (12) consecutive hours within a gas day 1 (= one day outage) and more than fourteen (14) gas days per storage year, the storage customer shall be released from its payment obligations on a daily basis regarding the respective actual restricted injection capacity, withdrawal capacity or respective actual restricted working gas volume from the fifteenth gas day on. In the case of a booking period of less than one storage year, this period shall be reduced accordingly. Otherwise, the storage customer shall be released from its performance obligations. (4) igsnwe shall notify the storage customer on a monthly basis about the period of the planned measures during the following six months in accordance with Paragraph (1) leading to any restriction in the storage capacities agreed in the storage contract. The notice pursuant to Sentence 1 shall be binding for the first two of these six months; changes in this binding plan for the first two of the six months may only be made by mutual agreement. In the event of disruptions pursuant to Paragraph (1), igsnwe shall notify the storage customer without delay. igsnwe will adapt the availability of storage capacities in its web-portal, if the actual availability of storage capacities deviates from the binding notice of planned measures. (5) After an interruption of the storage facility operations based on measures or incidents pursuant to Paragraph (1), the storage facility operations shall resume gradually, if relevant, with due regard to operational and technical supply circumstances. Injection and withdrawal capacity shall again be available when the respective capacity with due regard to the Annex "Technical Framework Conditions" can be used again by the storage customer. The working gas volume shall be considered as available again if the working gas volume can be used again with due regard to the Annex "Technical Framework Conditions" and the filling level of the storage facility corresponds at least to the status on the date of the interruption or restriction of the storage facility operations. If a refilling is necessary, this shall be made free of charge for the storage customer by igsnwe. (6) igsnwe shall be entitled to interrupt storage capacities at any time without prior notice if this is necessary and objectively justified, particularly in order to: a. prevent or avert imminent danger to persons, installations, the environment; or b. assure that disruptive effects on installations of igsnwe or third parties are averted. 13 Invoicing and payment (1) The storage fee fix pursuant to the Annex "Storage Fees" in connection with the respective storage contract shall be invoiced monthly for the current month (settlement month). For this purpose, the relevant storage fee fix shall first be reduced to a storage fee fix per calendar day and then multiplied by the number of calendar days in the relevant settlement month. As a result, the monthly invoice amounts shall vary by the number of calendar days in a settlement month. The invoice shall be issued prior to the fifth calendar day the storage capacities made available pursuant to the relevant storage contract. (2) The storage fee variable pursuant to the Annex "Storage Fees" in connection with the respective storage contract shall be invoiced monthly for the previous month. The invoice shall be issued prior to the 20 th calendar day on the basis the kwh of natural gas injected pursuant to the allocation for the storage customer in the previous month. 1 6:00 a.m. of one calendar day to 6:00 a.m. of the following calendar day - 10 -
(3) For the reimbursements to be made by igsnwe pursuant to 12, igsnwe shall issue a credit note each month prior to the 20 th calendar day for the previous month. (4) All other fees shall be invoiced and compensated separately, as soon as the information relevant to the settlement is available. (5) The fees pursuant to Paragraphs (1), (2) and (4) are to be paid within fourteen (14) days after receipt of an invoice by the storage customer by remittance onto the bank account disclosed in the invoice. (6) The credit notes pursuant to Paragraph (3) shall be paid by igsnwe within fourteen (14) days after the preparation of the credit note by remittance onto the bank account specified by the storage customer. (7) If a deadline pursuant to Paragraphs (1) to (6) falls on a weekend or holiday, the deadline shall be considered the following banking day. (8) In the event of the default of one contractual partner, the other contractual partner shall be entitled without any further reminder and without prejudice to further claims to demand the default interest stipulated by law ( 288 of the German Civil Code - BGB). (9) Objections to invoices are to be made immediately after they are detected. Objections to invoices shall not entitle the contractual party to delay or refuse payment, unless obvious errors (e.g. calculation mistakes) are concerned. (10) One contractual partner can only set off claims of the other contractual partner or assert a retention right if its due counterclaims are recognized or declared by non-appealable judgment. (11) Claims of the contractual partner against igsnwe may only be assigned to third parties with the written approval by igsnwe. 14 Credit screening igsnwe shall apply a credit screening in accordance with the provisions of the Annex Credit Screening. 15 Force majeure (1) A contractual partner shall be released from fulfilling its contractual obligations if and to the extent such partner is hindered in the performance due to force majeure, through measures of courts or authorities or through other circumstances for which such partner is not responsible or if the performance is unreasonable for such partner as a result. Accordingly, the other contractual partner shall be released from the obligations corresponding to these obligations. (2) "Force majeure" shall mean events outside the control of the affected contractual partner which cannot be prevented in due time even upon application of due diligence and all financial - 11 -
reasonable means, e.g. natural disasters, war, emergency measures, etc. This shall also include strikes and lock-outs. (3) The contractual partner affected by the events pursuant to Paragraphs (1) or (2) must notify the other contractual partner comprehensively and without undue delay of the disruption. Such partner must remedy the disruption as quickly as possible with the reasonable means at its disposal. 16 Liability (1) The contractual partners shall be liable to each other for damages based on injury to life, body or health, unless the contractual partner itself, its legal representatives, servants (Erfüllungsgehilfen) or vicarious agents (Verrichtungsgehilfen) have not acted intentionally or negligently. (2) In the event of a breach of material contractual duties, the contractual partners shall be liable to each other for property and pecuniary damage, unless the contractual partner itself, its legal representatives, servants or vicarious agents have not acted intentionally or negligently; the liability of the contractual partners in the case of property or pecuniary damage caused by slight negligence shall be limited to the typical and reasonably foreseeable damage. In the event of transactions of the present type, a "typical and reasonably foreseeable damage" can regularly be assumed in the case of damages of up to EUR 2.5 million per damage event for property damages and up to EUR 1.0 million per damage event for pecuniary damages. (3) The contractual partners shall be liable to each other for property and pecuniary damage in the case of a breach of non-material contractual obligations, unless the contractual partner itself, its legal representatives, servants or vicarious agents have not acted intentionally or grossly negligently. (4) The liability of the contractual partners themselves and for their legal representatives, managing servants and vicarious agents pursuant to Paragraph (3) shall be limited in the case of property and pecuniary damages caused by gross negligence to the typical and reasonably foreseeable damage. The liability of the contractual partners for simple (einfache) servants shall be limited in the case of property damages caused by gross negligence to EUR 1.5 million and in the case of pecuniary damages caused by gross negligence to EUR 500,000 per damage event. Liability for slight negligence shall be excluded hereby. (5) At variance with Paragraphs (2), (3) and (4), igsnwe shall be liable for property and pecuniary damages which the storage customer incurs as a consequence of an interruption or other irregularity in the assumption or delivery of natural gas, based on breach of contract or tortious act only if the property damage has been caused intentionally or negligently and the pecuniary damage has been caused intentionally or grossly negligently by igsnwe, its legal representatives, servants or vicarious agents, whereby the existence of intentional action or negligence in the case of property damages and intentional action or gross negligence in the case of pecuniary damages shall be presumed subject to refutation. In the case of property damages not caused intentionally, the liability pursuant to this Paragraph (5) shall be limited to EUR 2.5 million per damage event. In the case of pecuniary - 12 -
damages not caused intentionally, the liability pursuant to this Paragraph (5) shall be limited to EUR 1.0 million per damage event. (6) If the aggregate individual damage compensation claims of the storage customer against igsnwe pursuant to Paragraphs (2), (3), (4) and (5) for a single damage event exceed the maximum limit of EUR ten (10) million, the damage compensation claim of the storage customer shall be reduced in the ratio by which the aggregate damage compensation claims of all storage customers of igsnwe stand to this maximum limit. (7) Any liability of the contractual partner in accordance with compulsory provisions of liability law (Haftpflichtgesetz) or the Product Liability Act (Produkthaftungsgesetz) and other legal provisions shall not be prejudiced hereby. (8) Paragraphs (1) to (7) shall also apply to the personal liability of legal representatives, employees, servants and other vicarious agents of the contractual partners. 17 Data disclosure and processing igsnwe shall be entitled to forward consumption, settlement and contractual data to the adjacent network operator if and to the extent this is necessary for the due execution of the relevant storage contract. The storage customer hereby gives its consent to the automated processing of data by igsnwe or an enterprise commissioned by igsnwe in accordance with the provisions of data protection law. 18 Confidentiality (1) Both contractual partners shall be obligated to treat confidentially the data of which they become/have become aware in connection with the execution of the storage contract. Confidential treatment shall mean that information received from the other contractual partner shall not be made available to third parties without the prior written consent of the other contractual partner which gave the information and that such information may not be used commercially on behalf of third parties. The contractual partners shall not be authorized to use such data for any purpose other than to fulfill the duties assumed in accordance with this Agreement. The contractual partners shall also impose a corresponding obligation on the persons whom they use to fulfill the obligations incumbent upon them in accordance with the storage contract or to whom they transfer the capacity rights for use pursuant to 21. (2) Any necessary disclosure to tax or legal advisors and the disclosure of the necessary technical information to subcontractors shall be permissible even without separate written approval of the information provider if the disclosure is limited to the scope necessary for the performance of the storage contract and the recipients of the information for their part agree to treat the information confidentially or are obligated to maintain confidentiality by law and profession. (3) The duty to maintain confidentiality shall not apply to information that was previously known to the recipient at the time it was provided without any obligation to maintain secrecy or which was already available to the general public at the time of the provision or became available to the general public at a later time without default of the recipient. - 13 -
(4) Without prejudice to the above provisions, each contractual partner shall be entitled to meet its legal and statutory duties to provide information also in relation to the information provided to it. The other contractual partner must be informed of hereof. (5) The duty to maintain confidentiality shall exist for the term of each storage contract and shall continue to exist for five years beyond the cessation of each storage contract. 19 Economic changes (1) If the technical, financial, organizational or legal prerequisites under which the storage contract was agreed fundamentally change, each of the parties may request that the storage contract be supplemented and/or adjusted while maintaining the financial equilibrium and/or that such contract be transformed into a contract that does justice to these changes. The contractual partner that invokes such circumstances must substantiate and prove the relevant facts. (2) If no agreement can be agreed upon regarding the adjustment of the contractual provisions within three months after one contractual partner has requested an adjustment pursuant to Paragraph (1), each contractual partner may take the legal recourse foreseen in 26. The claim to the new contractual provisions shall exist from the date on which the requesting contractual partner first requests the new contractual provisions from the other contractual partner by invoking the altered circumstances. 20 Modifications of these Terms and Conditions (1) igsnwe shall be entitled to amend these Terms and Conditions of Storage Access, except for the fees and the liability provisions, at any time, even with effect for all existing storage contracts. Such a change shall be notified to the storage customer in writing with notice of at least three months. In such event, the storage customer shall be entitled within 6 weeks after the receipt of the change notice to appeal the adjustment. The storage customer must be informed separately in the written notice of this right to appeal and its significance and of the significance of the failure to submit an appeal. (2) Notwithstanding Paragraph (1), igsnwe shall be entitled to amend these Terms and Conditions and the related Annexes with immediate effect if a change is necessary in order to comply with applicable national or international laws, legal regulations and/or binding standards of national or international courts or authorities, particularly the Federal Network Agency (Bundesnetzagentur) and generally accepted rules of engineering. (3) Notwithstanding Paragraphs (1) and (2), igsnwe shall be entitled to amend the Annex "Operation and Nomination" with effect for all existing storage contracts with prior notice of 3 (three) months in order to maintain the operative integrity of the storage facility or the upstream natural gas transport systems and/or generally accepted rules of engineering (particularly EASEE-gas and DVGW) or determinations of national and/or international authorities. - 14 -
(4) The rectification of obvious typographical or calculation errors shall not constitute an amendment of these Terms and Conditions of Storage Access and shall be possible at any time. 21 Secondary trading (1) The storage customer shall be entitled to sublet the capacity rights agreed with igsnwe pursuant to the storage contract in whole or in part to reliable third parties for use. (2) In the event of subletting pursuant to Paragraph (1), the storage customer shall remain fully obliged in relation to igsnwe to fulfill the duties resulting from the storage contract, particularly to pay the relevant storage fees, to nominate volumes and to provide any securities. 22 Transfer of natural gas volumes The storage customer may transfer injected natural gas volumes within the same storage facility to another storage customer of igsnwe. Requirements and detailed provisions on operations pertaining to the transmission of natural gas volumes pursuant to Sentence 1 are stipulated in the Annex "Balancing". 23 Legal succession (1) With the prior approval of the other contractual partner, the contractual partner shall be entitled to transfer the entire storage contract or individual contractually determined storage capacities, consisting of working gas volume, injection and/or withdrawal capacity with the associated rights and duties from a storage contract to a third party. (2) The approval is to be granted provided no concerns exist about the technical and financial reliability of the third party. In particular, financial concerns shall not exist if the third party documents sufficient credit standing or provides adequate security upon request pursuant to 14. (3) As a supplement to Paragraphs (1) and (2), any transfer of rights and duties from a storage contract concerning firm or interruptible individual capacity (injection and/or withdrawal capacity) from the storage customer to a third party shall require that the third party has already concluded a storage contract concerning a working gas volume for the same storage facility or concludes such a contract in connection with the transfer of the rights and duties and the term of the storage contract concerning a working gas volume does not cease before the term of the storage contract concerning firm / interruptible individual capacity. (4) The approval is to be issued or denied at the latest four weeks after receipt of the request for approval and the provision of documentation pursuant to Paragraph (2). (5) A legal succession by an affiliated company in the terms of 15 of the Corporation Act (Aktiengesetz) shall not require the prior approval of the other contractual partner. - 15 -
24 Term and termination (1) The storage contract is concluded pursuant to the procedure described in 3 or via auction. The contract shall cease on the end date determined in the storage contract (= term of contact). Should obligations relevant to the contract continue to exist at this point in time, such obligations shall be fulfilled by the parties even after the expiry of the term of performance. (2) The booking period shall commence (with due regard to the provisions in 4) upon the starting date determined in the storage contract. The booking period shall cease upon the end date determined in the storage contract. (3) A storage contract may be terminated for good cause by either contractual partner extraordinarily with immediate effect. "Good cause" shall exist particularly in the event: a. a contractual partner has repeatedly breached material provisions of the storage contract and does so again, despite a prior written warning by the other contractual partner; b. insolvency proceedings are initiated concerning the assets of the other contractual partner or a petition for the initiation of such proceedings is dismissed due to a lack of assets pursuant to 26 of the Insolvency Code or seizure measures are instigated pursuant to 21 of the Insolvency Code (Insolvenzordnung) concerning the assets of the other contractual partner. The affected contractual partner must inform the other contractual partner about this without delay. (4) Irrespective of Paragraph (3), igsnwe may also terminate a storage contract with immediate effect extraordinarily if the storage customer: a. repeatedly fails to meet a payment obligation based on the storage contract for which outstanding amount no security exists and the outstanding amount is not received by igsnwe onto a bank account to be specified by igsnwe within fourteen (14) working days after the storage customer received a written payment request; b. the security requested pursuant to 14 is not rendered immediately after a repeated request. (5) If the storage contract is terminated extraordinarily by igsnwe, igsnwe shall give the storage customer the opportunity to have its natural gas volumes stored in the natural gas storage facility withdrawn by igsnwe within a maximum period of six (6) calendar weeks after the cessation of the contract in accordance with the provisions of these Terms and Conditions. After unsuccessful expiry of the period established in this regard, 9 Paragraph (1), Sentences 2 and 3 of these Terms and Conditions shall be applicable. - 16 -
25 Severability (1) Should one or more of the provisions contained in a storage contract, including these Terms and Conditions, be or become in the future invalid or impracticable in whole or in part, particularly in view of the changes in legal framework conditions such as through regulatory measures, the validity of the other provisions shall not be prejudiced thereby. (2) The contractual partners hereby agree in the event of Paragraph (1) to replace the invalid or impracticable provision by another valid and practicable provision which most closely approximates the invalid or impracticable provision in terms of the commercial outcome desired in accordance with the relevant storage contract, effective from the date of the invalidity or impracticability. The new provision must take the interests of both contractual partners into adequate account. This shall also apply if the contract should contain gaps not considered by the contractual partners. 26 Applicable law, arbitral proceedings and place of jurisdiction (1) These terms and conditions and all annexes are subject to German law. (2) All disputes from or in connection with a storage contract or regarding the validity thereof are to be settled completely and definitively as follows through arbitral proceedings without recourse to courts of law: a. The arbitral proceedings shall be conducted in conformance with the arbitral rules of the German Arbitration Institute (DIS); b. the seat of the arbitral tribunal shall be in Dortmund; c. there shall be three arbitrators, of whom at least one must be qualified to occupy the position of a judge in Germany; and d. the proceedings shall be conducted exclusively in German. (3) The losing contractual partner shall bear all costs related to the arbitral proceedings. If no contractual partner is completely successful, the costs incurred for the arbitral proceedings shall be divided on a prorated basis between the contractual partners pursuant to 91 of the Civil Procedure Code (Zivilprozessordnung). (4) Neither the contractual partners nor their security providers shall be exonerated from their obligations pursuant to this Agreement or any security agreement regarding this Agreement due to any sought or ongoing arbitral proceedings. 27 Integral parts of these Terms and Conditions The Annexes applicable to the relevant storage facility: - "Storage Fees" - "Technical Framework Conditions" - "Operation and Nomination" and - "Balancing" - Credit screening shall form integral parts of these Terms and Conditions. - 17 -